Submission to the Senate Select Committee inquiry into Recent ...

1 downloads 195 Views 808KB Size Report
Apr 16, 2015 - attains the right to survival, protection, development and participation. ..... offshore. In the case of
Submission to the Senate Select Committee inquiry into Recent Allegations Relating to Conditions and Circumstances at the Regional Processing Centre in Nauru

Save the Children Australia April 2015

Contents 1.

Executive summary and recommendations ........................................................... 3

2.

About Save the Children and our work on Nauru .................................................. 5

3.

The Moss Review and scope of this submission ...................................................... 6

4.

Tackling a wicked problem ................................................................................... 9

5.

Prolonged immigration detention is harmful to children ...................................... 12

6.

Response to the terms of reference ...................................................................... 16

7.

A new approach: adopting a regional protection framework ................................ 33

About Save the Children Save the Children is a leading independent international organisation for children and child rights. Our vision is of a world in which every child attains the right to survival, protection, development and participation. Our purpose is to inspire breakthroughs in the way the world treats children and to achieve immediate and lasting change in their lives. We work towards this vision in more than 120 countries across the globe. For further information about this submission please contact Annie Bodmer-Roy, Head of Policy & Advocacy, on (03) 9281 2704 or [email protected]

Page 2 of 37

1.

Executive summary and recommendations “It is the children who pay the highest price for our short sighted economic policy, our political blunders, our wars.” Eglantyne Jebb, founder of Save the Children

Save the Children works on Nauru because we believe that asylum seekers in immigration detention there need our help. Since Australia adopted a regime of offshore, mandatory immigration detention of people seeking asylum in 2001, an emerging body of evidence has concluded that immigration detention causes significant harm to asylum seekers, with particular impact on children.

The services we provide, under contract with the Australian Government, are critical to help mitigate the harsh impacts of immigration detention, to the extent possible in the circumstance. As the only rights-based organisation on Nauru that is driven by a mission to protect and promote the best interests of children and other vulnerable people, rather than by a return to shareholders, we believe that Save the Children is uniquely placed to respond to the terms of reference for the Inquiry.

Save the Children welcomes the findings of the Moss Review, which we consider was conducted in a rigorous and professional manner, notwithstanding the highly politicised public environment that preceded it. We are proud of our dedicated staff on Nauru, who work with some of the most vulnerable children in the toughest of circumstances. We were pleased, but not surprised, that the Moss Review found no evidence that Save the Children staff on Nauru encouraged self-harm, fabricated abuse allegations or orchestrated protests. However, Save the Children is deeply concerned at the evidence of sexual and physical assaults uncovered by the Moss Review, and we commit our full support and cooperation to the implementation of the Review’s recommendations.

In discharging its responsibilities for the management and operation of the Regional Processing Centre (RPC) in Nauru, the Australian Government has made significant progress against its Memorandum of Understanding with the Government of Nauru (MoU), in an extremely difficult operating environment. All service providers, together with the Department of Immigration and Border Protection (Department), Government of Nauru and the Nauruan people, have worked hard and in a collaborative fashion to achieve many positive outcomes for asylum seekers. However, Save the Children believes there is room for improvement against the MoU’s obligations to treat people with dignity and respect and in accordance with relevant human rights standards.

Page 3 of 37

Moreover, Save the Children believes that it is the act of prolonged and arbitrary detention that creates the circumstances that give rise to harm. No amount of hard work, collaboration or improvement to process or infrastructure can make up for this fact. Such a conclusion is supported by the Moss Review and other recent inquires. Accordingly, the only way to guarantee the rights and wellbeing of asylum seekers on Nauru is for the Australian Government to immediately end the practice of prolonged and mandatory detention. In the meantime, based on our experience on Nauru, Save the Children recommends that a number of relatively simple improvements could be made to policy or infrastructure that would significantly improve the liveability and amenity of the Nauru RPC, and the overall wellbeing of asylum seekers who reside there. Such changes include: a. Improvements to the physical environment to enhance amenity, improve safety and better respond to the needs of vulnerable people, such as pregnant clients or infants b. A renewed focus on the full and proper integration of asylum seeker or refugee children into the Nauruan educational system c. The introduction of mandated time limits on the period spent in detention by children, in order to minimise its harmful impact, and d. The introduction of genuine independent oversight mechanisms to ensure that the management of the centres is transparent and subject to appropriate public scrutiny. Finally, while Save the Children notes the timely action of the Department in commencing the implementation of the Moss Review recommendations, we maintain that Nauru remains an unsuitable and unsustainable response to the unprecedented global refugee challenge. We acknowledge that there are no easy solutions in balancing the need to act compassionately and humanely towards people fleeing persecution, and the need to be mindful in doing so not to incentivise travel by dangerous maritime voyages.

However, we believe that it is possible to maintain the sovereignty of Australia’s borders, while at the same ensuring safe and regular humanitarian pathways for refugees and responding generously to the needs of people fleeing conflict and persecution, as a prosperous and fair nation should. In doing so, Save the Children considers that the Australian Government should adopt a new approach to asylum seeker policy involving a genuine regional cooperation and protection framework.

Page 4 of 37

2.

About Save the Children and our work on Nauru

Save the Children welcomes the opportunity to respond to the Senate Select Committee inquiry into Recent Allegations Relating to Conditions and Circumstances at the Regional Processing Centre in Nauru (Inquiry).

a.

About Save the Children

Save the Children is a leading independent humanitarian and development organisation, working to create positive and lasting change for children. Established in 1919, Save the Children works in 120 countries around the world. Our Founder, Eglantyne Jebb, established Save the Children to assist children impacted by the allied blockade of supplies to Europe. She lobbied for an end to the blockade and drafted the Declaration of the Rights of the Child in 1923, which formed the basis of the United Nations Convention on the Rights of the Child (CRC).

These original humanitarian and human rights values continue to underpin the work of Save the Children today, which strives to promote and ensure lasting equality, fairness and enjoyment of rights for all children and young people in Australia and abroad. Our vision is of a world in which every child attains the right to survival, protection, development and participation. Our purpose is to inspire breakthroughs in the way the world treats children and to achieve immediate and lasting change in their lives. This philosophy supports the work of Save the Children and guides the direction of our programs, which aim to help and assist vulnerable children most in need, wherever they may be.

Save the Children has offices in every Australian state and the Northern Territory and provides education, youth engagement and child protection programs for disadvantaged children at more than 100 sites around the country. Each year, our Australian programs reach more than 29,000 children, young people and families from diverse backgrounds, including Aboriginal and Torres Strait Islander peoples and asylum seekers, refugees and migrants.

Globally, a significant part of our operations assist internally displaced and refugee children and their families. For example, we are currently supporting Syrian refugees and our team is active in the Za’atari Refugee Camp in Jordan, the Domiz Refugee Camp in the Kurdistan Region of Iraq, and throughout Lebanon. In East Africa we have been working with displaced persons and refugees across Kenya, Ethiopia and Somalia. Indeed, in 2014 Save the Children worked across the globe to deliver a $600 million humanitarian program for children and families in need.

Page 5 of 37

b.

Contract for services on Nauru

Save the Children is also contracted by the Australian Government to provide education, recreation and welfare services on Nauru to asylum seekers, including children and their families, childless couples and single adult women. These services are critical for children and adults who have had traumatic experiences and help mitigate the impact of immigration detention by building normality and routine. Our primary goal is to ensure that every step is taken to provide an environment that is as safe and protective for children and our other beneficiaries as the conditions allow. Our services in Nauru are supplied under a contract with the Commonwealth of Australia through its representative, the Department. Save the Children delivers services in accordance with the Contract, the RPC Guidelines and associated Codes of Conduct, including the Child Protection Safeguarding Protocol. In all of its work, Save the Children strives to implement organisational values and principles that are directed towards creating improvements in people’s lives. Save the Children works on Nauru because we believe that asylum seekers in detention there need our help. As the only rights-based organisation on Nauru that is driven by a mission to protect and promote the best interests of children and other beneficiaries, rather than by a return to shareholders, we remain committed to supporting these vulnerable people for as long as they need our services.

3.

The Moss Review and scope of this submission

a.

The Moss Review

On 3 October 2014, the (then) Minister for Immigration and Border Protection, the Hon Scott Morrison MP (former Minister), appointed Mr Philip Moss to conduct a review into recent allegations relating to conditions and circumstances at the Nauru RPC (the Moss Review)1. Mr Moss identified two main aspects for investigation, namely: claims of sexual and other physical assault of asylum seekers; and the conduct and behaviour of staff members employed by service providers, including Save the Children2.

Save the Children cooperated fully with the Moss Review and made a detailed submission that outlined: 

The negative impacts of the allegations and removal of Save the Children staff on our Nauru programs, especially for asylum seeker beneficiaries

1

The Hon Scott Morrison MP, Media Release ‘Independent inquiry into 'Nauru Allegations', 3 October 2014 Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, Final Report, page 3 2

Page 6 of 37



The significant body of research demonstrating that immigration detention causes severe harm to asylum seekers, which is consistent with Save the Children’s own observations with respect to the impact of detention on asylum seekers in the Nauru RPC



The absence of any specific details or evidence of the allegations against Save the Children staff, noting that the allegations were first provided to the media and published before Save the Children was contacted by the Department about the Moss Review



The lack of procedural fairness afforded to the Save the Children staff who were removed from Nauru, and



That, despite the challenging working environment on Nauru, Save the Children’s practices were consistently recognised as being of the highest standards.

On 20 March 2015, Mr Moss released his final report, which found no evidence that Save the Children staff on Nauru encouraged self-harm, fabricated abuse allegations or orchestrated protests3. Save the Children welcomes these findings. We are proud of our dedicated staff on Nauru who work with some of the most vulnerable children in the toughest of circumstances.

However, the Moss Review did provide clear evidence to support claims of sexual and physical assaults on Nauru, including assaults on minors. The evidence included: 

Children, some as young as 11 years old, attempting suicide and self-harming4



Two allegations of rape5, and allegations of sexual assault against a child6, and



Under-reporting of sexual and physical assaults on Nauru7.

Save the Children is deeply troubled by this evidence but not surprised. The Moss Review confirmed our long held view that prolonged and mandatory detention causes serious harm to asylum seekers, especially children. It also confirmed that, notwithstanding the significant efforts of the Department and service providers to minimise such harm, such an outcome is impossible. It is an inherent condition of detention itself that creates the circumstances that give rise to such harm. Accordingly, Save the Children believes that the only way to guarantee the rights and wellbeing of asylum seekers on Nauru is for the Australian government to immediately end the practice of prolonged and mandatory detention.

Mr Moss also made 19 recommendations aimed at addressing some of these findings and improving the overall operation and management of the Nauru RPC8. Save the Children was pleased that the

3

Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, Final Report, page 5, paragraph 24. 4 Ibid, page 36, paragraph 3.92 5 Ibid, page 25, paragraph 3.15 6 Ibid, page 37, paragraph 3.107 7 Ibid, page 46, paragraph 3.157 8 Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, Final Report, page 9 Page 7 of 37

recommendations were accepted in full by the Department9. We are committed to working with the Department to implement any relevant recommendations to improve our service delivery, the operation of the Nauru RPC, and the protection and wellbeing of asylum seekers who are detained there.

b.

Scope of this submission

The Moss Review was conducted in a highly charged environment. Notwithstanding this, Save the Children is satisfied with its conduct and outcome.

Mr Moss travelled to Nauru on two occasions, received submissions from service providers, the Australian Federal Police, and Senator Hanson-Young10. Mr Moss conducted 114 interviews including with Save the Children staff (including nine of the ten staff that were the subject of the removal notice), other service providers, Australian and Nauruan government officials and with asylum seekers themselves11. At all times Save the Children was satisfied that the Moss Review was conducted in a professional manner. Accordingly, in this submission Save the Children does not propose to re-examine matters the subject of the Moss Review, to the extent that the terms of reference for this Inquiry seek to do so.

Save the Children strives to strike a balance between our role as a child rights organisation, on the one hand, and our role as a service provider to asylum seekers in Nauru, on the other. This position, while at times precarious, affords Save the Children with a unique perspective on the impact of immigration detention, especially on highly vulnerable beneficiary cohorts such as children.

In this submission we seek to draw upon this unique perspective, together with our global work with displaced and refugee children and their families to: 

Respond to the terms of reference



Articulate the harmful impacts of prolonged and mandatory immigration detention (especially upon children), and



Outline an alternative approach to asylum seeker policy involving a genuine regional cooperation and protection framework.

9

The Hon Peter Dutton MP, Media Release ‘Moss Report’, 20 March 2015; and press conference, available at http://www.minister.immi.gov.au/peterdutton/2015/Pages/moss-review.aspx 10 10 Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, Final Report, Methodology pp15 – 16 11 Ibid Page 8 of 37

4.

Tackling a wicked problem

Asylum seeker policy in Australia has often been described as a ‘wicked problem’.12 In other words, it is a complex policy problem without a straightforward solution; resistant to quick, easy or full resolution, with disagreement as to root causes, contributing or influencing factors, and measures to address the problem. In some instances, attempts to address wicked problems can lead to unforeseen consequences and/or chronic policy failure, where the problem becomes intractable.

As a result, the challenge of those formulating policy or providing policy advice to address complex problems is to reassess traditional ways of working and problem-solving, while maintaining coordinated action through Government and relevant civil society actors13.

The ‘wicked problem’ of determining a fair and humane policy solution to the growing number of asylum seekers is not unique to Australia. In 2014, more than 50 million people forcibly displaced from their homes – by conflict, disaster, persecution, human rights violations or generalised violence – representing a level of displacement not seen since World War II14. Of particular concern to Save the Children is the high level of children experiencing forced displacement, where children now represent half of the global total15.

In comparison with these global figures, the numbers of asylum seekers and refugees attempting to come to Australia are quite small, even at higher levels of July 2013, when an estimated 4,236 asylum seekers landed on Australian shores16. In contrast for example, the recent surge in migrants arriving in Italy by boat has totalled 22,507 migrants between January 1 and April 16 2015. Save the Children is at the frontline of Italy’s response to this crisis, working at the invitation of the Italian authorities and together with United Nations High Commission for Refugees (UNHCR), International Organisation for Migration (IOM) and the Red Cross to monitor the first reception centre placed on the Island and address the immediate needs of children, including in some cases, providing support to relevant authorities in family tracing and reunification for separated or unaccompanied children.

12

Ben Eltham, Asylum Seekers A Wicked Problem, New Matilda (26 June 2012);and Paris Aristotle, Chair of the Ministerial Council on Asylum Seekers and Detention, Australian Human Rights Commission Inquiry into Children in Immigration Detention, August 22, 2014. Available at: https://www.humanrights.gov.au/sites/default/files/Mr%20Aristotle%20and%20Prof%20Procter.pdf 13 Lynelle Briggs, Tackling wicked problems: A public policy perspective, Australian Public Service Commissioner (2007). Available at: http://www.apsc.gov.au/publications-and-media/archive/publications-archive/tackling-wicked-problems 14 United Nations High Commissioner for Refugees, Global Trends 2013 (20 June 2014). Available at - http://apo.org.au/research/unhcr-globaltrends-2013 [Accessed on 26 June 2014] 15 UNHCR, ‘Children, Protection and Building Resilience’, available at https://www.unhcr.org/pages/49c3646c1e8.html 16 ABC Factcheck, Immigration Minister Scott Morrison not telling the full story on asylum seeker arrivals, 4 February 2014. Available at http://www.abc.net.au/news/2013-12-10/scott-morrison-not-telling-full-story-asylum-seeker-arrivals/5119380 Page 9 of 37

As a result of increasing numbers of asylum seekers reaching Australia in 2012 and 2013 and an increase in asylum seekers drowning at sea, including a number of children17, successive Governments made significant changes to asylum seeker policy in an attempt to address the issue of deaths at sea18. In combination, the measures enacted by the former Labor Government and the current Abbott Government sought to stop people arriving by sea, and thereby reduce the risk of drowning, through deterrence (i.e. mandatory and prolonged immigration detention, offshore processing, no resettlement in Australia and limited temporary protection) and a focus on border protection (i.e. turning back boats) 19

.

It is also important to note however a willingness to adopt some measures that would allow for an increase in refugees allowed to come to Australia – incentives to use so-called regular migration pathways, for example through a commitment to increase Australia’s humanitarian intake to 20,000 places under Labor (also committed to by the Coalition pre-election but later reduced to 13,750) 20. Currently Australia’s intake sits at 13,750, with a commitment to increase to 18,750 over the next four years21.

These commitments to increase Australia’s humanitarian intake were previously complemented by a temporary investment in programs that would reduce risky travel by boat, via a “Displaced Persons Programme” to promote the stability of displaced persons through service provision in social protection, accommodation, food, livelihoods and vocational training, and education. Investment was made in 2012-2013 in both migrant ‘source’ and ‘transit’ countries including Pakistan, Afghanistan, Indonesia, Syria, Lebanon, Jordan, Turkey, Iran, Bangladesh, Malaysia, Sri Lanka, Thailand and other countries22. However, the Displaced Persons Program has however since been defunded23.

Some of these measures reflected advice provided to the Labor Government in August 2012 by the Expert Panel on Asylum Seekers (Expert Panel). At the time, the Expert Panel suggested that new strategies were needed that would “shift the balance of Australian policies and regional arrangements

17

Australian Border Deaths Database - http://artsonline.monash.edu.au/thebordercrossingobservatory/publications/australian-border-deathsdatabase/ [Accessed on 26 June 2014]. 18

Prime Minister Kevin Rudd, Transcript of Joint Press Conference, 19 July 2013. Available at: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F2611766%22 19 Ibid; Janet Phillips and Harriet Spinks, Immigration Detention in Australia, Parliamentary Library (20 March 2013); and The Coalition’s Operation Sovereign Borders Policy (July 2013). 20 Janet Phillips , Parliamtent of Australia, Department of Parliamentary Services. “A comparison of Coalition and Labor government asylum policies in Australia since 2001,” Parliamentary Library Research Paper, February 2014. Available at http://parlinfo.aph.gov.au/parlInfo/download/library/prspub/3024333/upload_binary/3024333.pdf;fileType=application%2Fpdf 21 Scott Morrison MP, former Minister for Immigration and Border Protection, “Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, transfer to Darwin,” Press Conference, Canberra, Wednesday, 03 December 2014. 22 Questions Taken on Notice, Budget Estimates 26-27 May 2014, Immigration and Border Protection Portfolio. Accessible at http://www.aph.gov.au/~/media/Committees/legcon_ctte/estimates/bud_1415/DIBP/BE14-083.pdf 23 The Australian Government Immigration and Border Protection Portfolio, Portfolio Budget Statements 2014-2015, p. 19. Accessible at http://www.immi.gov.au/pub-res/Documents/budget/2014-15-pbs-full.pdf Page 10 of 37

to give greater hope and confidence to asylum seekers that regional arrangements will work more effectively, and to discourage more actively the use of irregular maritime voyages24.”

The Expert Panel recommended, among other things, a regional processing framework including the establishment of offshore processing capacity in Papua New Guinea and Nauru, and a ‘no advantage’ principle to ensure that no benefit would be gained through circumventing regular migration arrangements25. Importantly, however, the Expert Panel also recommended other measures including a strong regional protection framework, a significant increase in Australia’s intake of humanitarian refugees and the development of a more effective whole-of-government strategy for engaging with source countries26.

The Expert Panel set out a comprehensive framework for asylum-seeker policy in Australia, which included mechanisms to both deter sea voyages and to create safer pathways to asylum. Unfortunately, successive Governments have cherry-picked some of the harsh, deterrent focused measures, at the expense of many of the safeguards and regional cooperation measures necessary to ensure the protection of human rights and sustainability of the policy response.

Save the Children acknowledges that there are no easy solutions in balancing the need to act compassionately and humanely towards people fleeing persecution, and the need to be mindful in doing so not to incentivise travel by dangerous maritime voyages. We also acknowledge that the existing policy settings that seek to balance these concerns have, to a large degree, bi-partisan political support and the support of the majority of Australians27.

However, Save the Children is concerned that the current policy settings represent a piecemeal and incomplete policy response, aspects of which are driven more by political considerations than any desire to find a sustainable and humane approach that reflects Australia’s obligations under international law. Moreover, the response violates the human rights and dignity of people who lawfully seek asylum and are in need of protection, and could potentially put vulnerable children and families at risk of persecution if returned to their country of origin.

Further, the policy response since 2012 makes no serious attempt to establish a regional protection framework and has failed to recognise the particular migration challenges facing the Asia-Pacific region, which continues to have the world’s largest refugee population overall at 3.5 million people28, and close 24

Report of the Expert Panel on Asylum Seekers (August 2012), pg 7. Ibid, pg 14 (Recommendation 1). 26 Report of the Expert Panel on Asylum Seekers (August 2012), pg 14 – 18. 27 Alex Oliver, The Lowy Institute Poll 2014, pg 10. 28 United Nations High Commissioner for Refugees, Global Trends 2013 (20 June 2014). 25

Page 11 of 37

to one fifth of the global total of people forcibly displaced from their homes29, at a time when global forced displacement is the highest it has been in decades. Far from building a genuine regional cooperation framework, the current policy response has arguably caused deterioration in diplomatic relations with some of our largest and most important potential partners in a genuine regional framework, including Indonesia30.

5.

Prolonged immigration detention is harmful to children

A significant body of research has emerged over the past decade demonstrating or confirming that immigration detention causes significant psychological harm to asylum seekers, with particular impact on children. This includes recognition by the Department itself in 2002 that “mental health issues [are] to do with being long-term in a detention environment31.” This view is evidenced through numerous reports and studies since that time, including primary evidence from asylum seekers, mental health experts and incident reports from across the Australian immigration detention system, all of which have consistently demonstrated that the very nature of prolonged immigration detention significantly and negatively impacts on asylum seekers’ mental health. Indeed, the research indicates that severe psychological harm, including self-harm, is a foreseeable if not inevitable consequence of prolonged immigration detention.

One such report that encompasses interviews with children and adults in detention, medical records and incident reports from immigration detention centres, and supported by oral testimony and submissions from mental health experts across the country, is the 2004 report of the Human Rights and Equal Opportunity Commission, A Last Resort? National Inquiry into Children in Immigration Detention (2004 HREOC Report). This report presented significant and detailed evidence documenting the impact of detention on children’s mental health. Examples in the report of how this manifested in children include “anxiety, distress, bed-wetting, suicidal ideation and self-destructive behaviour including attempted and actual self-harm” and in some instances, depression and post-traumatic stress disorder32. The 2004 HREOC Report also found that the impact of institutionalisation is generally heightened by the immigration detention context, with a number of additional factors adding to the psychological stress

29

UN High Commissioner for Refugees (UNHCR), ‘World Refugee Day: Global Forced Displacement Tops 50 Million for the First Time in PostWorld War II Era’, Press Release, Geneva, 20 June 2014 30 Indonesia has openly criticised and rejected the Australian Government’s turning back of asylum seeker boats. See: ABC Online, Tension over asylum seekers (11 November 2013), http://www.abc.net.au/news/2013-11-11/tension-over-asylum-seekers/5084562?section=act See also http://www.smh.com.au/federal-politics/political-news/indonesia-rejects-abbott-plan-to-turn-back-boats-20130531-2nh7v.html 31 Then called the Department of Immigration and Multicultural Affairs and Indigenous Affairs (DIMIA). DIMIA, Contract Operations Group Minutes, 19 July 2001, (N1, Q3, F4), as quoted in the 2004 Human Rights Commission report, “A Last Resort? National Inquiry into Children in Immigration Detention, section 9.3.2, Length of Detention. P 387. Available at https://www.humanrights.gov.au/sites/default/files/document/publication/alr_complete.pdf 32

Human Rights and Equal Opportunity Commission, A Last Resort? National Inquiry into Children in Immigration Detention, Chapter 9, pages 359-360. Page 12 of 37

experienced by children in immigration detention. The 2004 HREOC Report identified these additional factors as including:



Living in a closed environment



Trauma prior to arrival in Australia



The length of detention



The uncertainty as to the visa process and negative visa decisions



The breakdown of many families within detention, and



Children’s perception that they are not safe within detention.

Immigration detention can cause ongoing damage to children beyond the period of detention. Some experts have suggested that the negative impacts of immigration detention can be ongoing for years after their release and in some cases, risks having a lifelong impact on children. This can include educational and social difficulties, psychological trauma and a need for ongoing counselling33.

More recently, in February 2013, the Darwin Asylum Seeker Support and Advocacy Network (DASSAN) released documents obtained from the Australian Government via a Freedom of Information request that detailed the extent of self-harm in a Darwin immigration detention centre. The documents released by DASSAN detailed 26 cases of self-harm by detained asylum seekers aged 9 to 17 between August 2010 and November 201134.

The 2014 report of the Australian Human Rights Commission (AHRC), The Forgotten Children: A national inquiry into children in immigration detention (2014 AHRC Report), provides an updated evidence-base on the impact of detention, including prolonged detention, on children. For example, 85% of children and parents consulted in the inquiry indicated an impact in their emotional and mental health since being detained.35 Further, the report found that 34% of children assessed “had mental health disorders that would be comparable in seriousness to children referred to hospital-based child mental health outpatient services for psychiatric treatment,” and that in comparison, “less than two percent of children in the Australian population have mental health disorders at this level 36 .” The severe impact of immigration detention on children’s mental and emotional health has led some experts to label children’s detention as child abuse37. 33

See for example, 2004 HREOC report, page 410-411. Ehssan Veiszadeh, “Child Asylum Seekers Harming Themselves,” The Australian, February 19, 2013. Available at http://www.theaustralian.com.au/news/latest-news/child-asylum-seekers-harming-themselves/story-fn3dxiwe-1226581246398 35 Australian Human Rights Commission, The Forgotten Children: A national inquiry into children in immigration detention¸August 2014, Chapter 4.8 “Mental health and wellbeing of children in detention”, page 58. Available at https://www.humanrights.gov.au/sites/default/files/document/publication/forgotten_children_2014.pdf 36 Ibid, page 59. 37 The Medical Journal of Australia in 2014 published a survey of Australian paediatricians, over 80% of whom agreed that the prolonged detention of children in immigration detention as child abuse to due the severity of the impact the policy has on children. See Elizabeth J M Corbett, Hasantha Gunasekera, Alanna Maycock and David Isaacs, “Australia's treatment of refugee and asylum seeker children: the views of Australian paediatricians,” Medical Journal of Australia, August 2014; 201 (7): 393-398. Available at https://www.mja.com.au/journal/2014/201/7/australias-treatment-refugee-and-asylum-seeker-children-views-australian 34

Page 13 of 37

The cumulative evidence of the 2004 HREOC Report, DASSAN documents, and the 2014 AHRC Report is consistent with Save the Children’s experience on Nauru, where asylum seekers are experiencing significant harm on a daily basis as a result of their prolonged detention.

In interviews provided to the Moss Review, Save the Children staff provided evidence that: 

Perceived injustice, disempowerment, the sense of not being heard, and the loss of any ability to control their future on the part of asylum seekers has led to instances of self-harm, including lip stitching, cutting, head banging and consumption of poison;



The longer the period in which asylum seekers are detained, the more they report that they are feeling hopeless and in despair, and the more they begin to exhibit symptoms of depression and anxiety;



Many of the parents in detention on Nauru have mental health issues arising from detention, often in combination with previous traumatic experiences, and this has caused asylum seekers to become depressed. In many cases this has left them unable to provide proper parenting for their children;



The consequences of detention for child development are often exacerbated by a lack of toys; and



Unrest, disturbance and incidents of self-harm that have occurred within the centre, have in many cases been extremely traumatic, especially for children.

This oral evidence is supported by documents and records from the Nauru RPC. Incidents of abuse and harm of asylum seekers at the Nauru RPC have been clearly documented since Save the Children first began providing services there in 2013. These events have been recorded by Save the Children in incident reports, through case notes and via other monitoring processes in accordance with guidelines and protocols at Nauru RPC.

The types of incidents observed by Save the Children on Nauru are consistent with evidence in the 2014 AHRC report which focussed largely on onshore detention. Documented incidents provided by the Department to the AHRC involving children in immigration detention included serious assaults, selfharm, sexual assault and voluntary starvation/hunger strikes38.

38

Australian Human Rights Commission, The Forgotten Children: A national inquiry into children in immigration detention¸August 2014, Chapter 4.9 “Detention is a dangerous place”, page 62. Available at https://www.humanrights.gov.au/sites/default/files/document/publication/forgotten_children_2014.pdf Please note that the information provided in the AHRC report was sourced from the Department, which did not provide a breakdown as to where these incidents occurred. Given the position of the Australian Government that offshore detention was outside the scope of the AHRC Inquiry, it is assumed that Nauru is not included in the incidents listed in this section of the report. The Australian Government’s position on the inclusion of offshore detention can be found in former Minister for Immigration and Border Protection’s testimony before the AHRC Public Hearing in Canberra, August 22 2014, available at https://www.humanrights.gov.au/sites/default/files/Hon%20Scott%20Morrison%20Mr%20Bowles.pdf Page 14 of 37

In addition to these incidents, Save the Children has observed and is concerned by developmental regression and mental ill-health amongst children, as well as instances of family violence and the effects of family breakdown and separation from family members and close relatives. These observations together with the documented incidents, very clearly and comprehensively demonstrate how prolonged immigration detention threatens the physical, mental and emotional wellbeing of asylum seekers, particularly children.

As submitted to the Moss Review, Save the Children is concerned that the mental health and wellbeing of children, families and other adult asylum seekers at the Nauru RPC has now reached a serious crisis point. Over time, Save the Children has observed an increase in the frequency of incidents at the Nauru RPC. This is consistent with reports by mental health experts that children’s mental health deteriorates the longer that they are detained.

Many asylum seekers, including children and families, have been held in detention at the Nauru RPC for over 12 months. The prolonged nature of asylum seekers’ detention in the Nauru RPC is having a significant impact on their health and wellbeing. Example 1: Mark39, 9 year-old boy, in detention on Nauru for over 12 months Mark is a 9 year-old boy who arrived on Nauru over 12 months ago. He is an only child. Mark is an extremely polite, popular and kind child. Educationally he is strong, his English is good and he is able to pick up new concepts quickly, make connections and retain the information. When Mark arrived he was happy, healthy and resilient. Over the time spent in detention, Mark’s psycho-social wellbeing has deteriorated greatly. He has been known to go through periods of behaving intensely withdrawn, isolating himself for weeks. The withdrawal from others and disengagement from activities is crippling, he rarely leaves his tent, he will not play with friends, he does not attend school, he stops communicating with adults and peers and he lashes out against his parents, blaming them for the conditions they live in. Mark does not leave his tent to eat meals in the mess and this has resulted in him at times becoming underweight and frail. Mark feels that he has no friends left as most of the peers he knows, and formed an attachment to, have been medically transferred to Australia or been determined to be refugees and are now in the Nauru community.

39

All names have been changed to help protect children’s identities. For this reason as well, countries of origin and names of particular

locations in the Nauru RPC have been removed.

Page 15 of 37

Where the immigration detention setting is offshore, and in a developing country such as Nauru, there are additional risk factors presented by a lack of local institutional capacity, for example child protection laws and poor law enforcement systems that create challenges in ensuring appropriate safeguarding and protection of children. These factors are compounded at an operational level – and as illustrated through the Moss Review – where a lack of appropriate private facilities in the Nauru RPC to conduct child protection assessments and interviews compromises the ability of staff to effectively gather information and respond to incidents, which in turn risks a further detrimental impact on children’s mental and emotional wellbeing. While these factors are in part being addressed through implementation of the recommendations of the Moss Review, Save the Children is concerned that the time it will take to implement these recommendations in full, together with the risks outlined above make it impossible to create levels of protection to fully mitigate risks to children in immigration detention, particularly prolonged detention.

6. a.

Response to the terms of reference How the Commonwealth Government is fulfilling its obligations under the Memorandum of Understanding between The Republic of Nauru and the Commonwealth of Australia

Save the Children does not propose to comment on the Commonwealth Government’s fulfilment of each of its obligations under the MoU, which is properly a matter for the Government. However, Save the Children notes that, pursuant to the MoU both the Republic of Nauru and Commonwealth of Australia committed to “treat Transferees with dignity and respect and in accordance with relevant human rights standards” and that “special arrangements will be developed and agreed to by the Participants for vulnerable cases, including unaccompanied minors”. As a child rights organisation and one previously charged with guardianship responsibilities for unaccompanied minors, Save the Children will make observations on the compatibility or otherwise of current arrangements with relevant human rights standards.

Unaccompanied and separated minors As a child rights organisation and a leading aid agency providing child protection services to children who have fled disaster, conflict and persecution worldwide, Save the Children has deep experience working to support unaccompanied and separated minors, many of whom become separated from their families when fleeing their homes or in some cases, after arriving in immigration detention, including offshore. In the case of Nauru, Save the Children has provided care for a number of unaccompanied and separated minors. In addition to taking on guardianship for unaccompanied minors, Save the Children has provided regular and ongoing welfare, recreation and education services for children who have Page 16 of 37

become separated from their primary caregivers, many of whom have exhibited deteriorating behaviour and wellbeing as a result of this separation, and several of whom have been considered particularly vulnerable by Save the Children and other service providers.

The UN Committee on the Rights of the Child, the international body responsible for monitoring adherence to the CRC by signatory States, has issued specific guidance on the rights of unaccompanied or separated children outside their country of origin, and the associated responsibilities of States party to the CRC. The General Comment containing this guidance specifies that: “The ultimate aim in addressing the fate of unaccompanied or separated children is to identify a durable solution that addresses all their protection needs, takes into account the child’s view and, wherever possible, leads to overcoming the situation of a child being unaccompanied or separated. Efforts to find durable solutions for unaccompanied or separated children should be initiated and implemented without undue delay and, wherever possible, immediately upon the assessment of a child being unaccompanied or separated. Following a rights-based approach, the search for a durable solution commences with analysing the possibility of family reunification40.”

The following example illustrates the impact of family separation on a child in immigration detention. Example 3: Ben, 16 year-old boy, separated from his father Ben, 16, was separated from his father when he was young – his father left their country of origin first, and spent some years in detention en route to Australia. Ben and his mother left their country with the plan to reunite the family, and arrived on Christmas Island before being transferred to Nauru. Ben’s father lives in Sydney, Australia and is an Australian Permanent Resident.

The family separation has had a devastating impact on Ben. For months, Ben has withdrawn from activities and attachments – has rarely attends school, despite Save the Children’s ongoing attempts to provide intensive support, and often sleeps until the afternoon alone inside his tent.

Ben has harmed himself on several occasions, including one incident where he repeatedly hit himself in the head with rocks, while shouting at guards ‘kill me’, and another where he injured his hand by hitting a wall. Ben has also repeatedly expressed his frustration through violent outbursts, including one particularly alarming incident where he attempted to strangle another boy. Ben is considered by Save the Children as being one of the most vulnerable children in the RPC. Interventions have included regular and sustained attempts to get Ben back into school, seeking additional sessions with his 40

UN Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, 1 September 2005, Section VII (a), page 22. Available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=5&DocTypeID=11 Page 17 of 37

caseworker, encouragement for him to participate in recreation activities, and referral to the International Health and Medical Services (IHMS), including referral to a child psychiatrist. Although the family has been separated physically for an extended period of time, strong and ongoing family attachments remain. Ben and his mother have weekly phone calls with Ben’s father; and Ben’s father regularly sends gifts to his family. In sessions with Save the Children caseworkers and discussions with teachers, Ben’s one constant expressed wish has been to be reunited with his own father.

Ben has placed blame on his mother for the long term separation from his father, despite his mother’s ongoing attempts to provide loving care for her son in the RPC. Save the Children staff report that his anger outbursts are escalating, with a high risk of further escalation. Recently he has withdrawn from his regular contact with this father, and his mother is struggling to manage his unpredictable behaviour. In the absence of his father, Ben spends increasing time with older men in the RPC, expressing a desire for older male influences in his life. Save the Children child protection experts and Ben’s mother both see Ben as continually craving a positive male role model to look up to. Save the Children believes that a reunion of Ben and his father in Australia, would clearly be in the best interests of this child, to ensure his ongoing safety and development, and to fulfil his right to live with his father.

The lack of action to reunify children with their families is, in the view of Save the Children, a failure to treat asylum seekers with dignity and respect and in accordance with relevant human right standards as required by the MoU.

Further, this case represents one of several in a particularly vulnerable group – that of separated children – whom Save the Children considers as amongst the most vulnerable of the overall cohort we provide services for on Nauru. Save the Children recognises specific measures have been taken to improve conditions for unaccompanied minors as per the MoU, for example separate accommodation and explicit guardianship arrangements.

However, Save the Children recommends special arrangements also be put in place for separated children, including the introduction and implementation of a policy against family separation. Recognising that a policy change of this nature might take some time, Save the Children suggests interim measures to mitigate the damage to children’s wellbeing could include facilitating regular Skype or other video calls and facilitating family visits, and implementing a moratorium on transfers back to Nauru for children in onshore detention where they have family in Australia.

Notwithstanding these difficulties, through much hard work and collaboration between all service providers in Nauru, together with the Department, Government of Nauru and the Nauruan people, Page 18 of 37

some positive outcomes for asylum seekers have been achieved pursuant to the MoU. Such outcomes include: 

The establishment of a high quality, dedicated educational facility in RPC1, staffed by highly qualified and experienced Australian teachers, teaching to a Queensland curriculum



The establishment of a dedicated and air-conditioned early childhood care and development facility in RPC3 that provides children aged zero to four years with essential emotional, mental and physical development support and parents with postnatal support and respite that allows them to attend health appointments, contact their extended family or take some ‘time out’ from their infant child



The establishment of an adult education program, including a library facility, that is providing asylum seekers with opportunities to build their English language and other vocational skills during their time in detention



The delivery of a range of recreational activities that allow asylum seekers to undertake sport, craft, excursions and a wide range of social activities which help to keep these people engaged, assist them to develop new skills and contribute to their overall health and wellbeing



The establishment of an effective welfare service, supported by customised case management software, which provides asylum seekers with emotional and practical support, encourages engagement in meaningful activities and works collaboratively to identify early those individuals who are vulnerable and to put strategies in place to strengthen protective factors



Improvements to physical infrastructure and amenity in the Nauru RPC, including soccer pitches, a gymnasium, play equipment, shading, cricket nets and air-conditioning in some multi-purpose facilities, and



The implementation of mechanisms and frameworks to better improve protections for asylum seekers in the Nauru RPC, including a Child Safeguarding Protocol, Code of Conduct for service provider staff and associated training.

The positive impact of some of these programs is demonstrated by the case study below. Example 4: Bruce, 11 years old, detained on Nauru for over 12 months Bruce is an 11 year-old boy who arrived on Nauru over 12 months ago with his mother, father and younger brother. Initially Bruce displayed what can be considered typical behaviours of a traumatised child, and with his limited English he conveyed his fears through a series of drawings which were almost always about death or of the boat journey they endured. Bruce was extremely unpredictable and violent. He displayed extreme outbursts of uncontrollable anger. This often included throwing stones, hitting, kicking, swearing and punching, not only children but also teachers, guards and other adults. He was the subject of many case conference meetings, incident reports and vulnerable minors meetings. His parents are also volatile and in the past have been observed aggressively disciplining their children Page 19 of 37

with physical violence. Bruce received notification several months ago that his initial claim for refugee status had been denied. At this point, he began to miss a lot of school and disengaged from many people including caseworkers, teachers and friends, becoming increasingly isolated. Bruce began to fall behind in his schooling, which impacted on his self-esteem.

With intense coordination and communication between caseworkers, recreation and education teams, however, Bruce gradually became more responsive. School work was differentiated to meet his individual needs and other strategies included structure and consistency within the classroom, positive reinforcement, behaviour management charts, designated areas for him to go when feeling agitated and an individualised behaviour management plan. The caseworkers worked together with the parents to provide positive discipline strategies and included the family within their parenting classes. Bruce is now much more confident at school. He is exceling in his school work; he can now write full paragraphs, makes plausible attempts at his spelling and has successes in his maths work. The positive behaviours which he displays at school are flowing into camp with less negative reports and good feedback from recreation teams.

b.

The performance of the Commonwealth Government in connection with the Centre, including the conduct and behaviour of the staff employed at the Centre, to the extent that the Commonwealth Government is responsible

The Nauru RPC presents a challenging environment within which to work. Notwithstanding this, Save the Children’s practices are consistently recognised as being of the highest standards. To fulfil our contractual obligations and work towards our organisational goals to ensure the best possible care for asylum seekers, Save the Children employs well-respected professionals and experts, including: 

Specialised technical advisers in education, child protection, emergencies, health and wellbeing



Qualified Australian teachers, social and recreation workers, and



Project leaders with experience in management and administration across the government, business and legal sectors.

As outlined above, the Moss Review found no evidence that Save the Children staff on Nauru encouraged self-harm, fabricated abuse allegations or orchestrated protests.

Save the Children employees are committed professionals who strive to conduct their duties to the highest professional and ethical standard at all times. In addition, there are a range of protocols and guidelines in place in the Nauru RPC that regulate staff behaviour and conduct. For example, Save the Page 20 of 37

Children has implemented various mechanisms improve protections for asylum seekers in the Nauru RPC, including a Child Safeguarding Protocol and Code of Conduct for incorporation into the RPC Guidelines, which are binding on all service providers. While there is no legislative framework in place in Nauru that requires pre-employment screening such as working with children checks, as noted by the Moss Review, the Government of Nauru is revising its criminal code with the assistance of the Australian Attorney-General’s Department41.

c.

The Commonwealth Government’s duty of care obligations and responsibilities with respect to the Centre

Save the Children notes that the existence of a duty of care owed by the Australian Government in respect of the Nauru RPC or otherwise is a matter of law.

d.

The circumstances that precipitated the Moss Review, including allegations made regarding conditions and circumstances at the centre and the conduct and behaviour of staff employed by contracted service providers, the timing of the Commonwealth Government’s knowledge of the allegations, and the appropriateness of the response of the Commonwealth Government to these allegations

The circumstances that precipitated the Moss Review have been well documented, both by the Moss Review itself and through various public reports. In particular, the following key events have been established: 

On 25 September 2014, the former Minister video broadcast a Ministerial message to asylum seeker detainees in the Nauru RPC following the announcement of legislation to re-introduce temporary protection visas in Australia42



In the days following, asylum seekers undertook protest activity in the Nauru RPC and there was a significant increase in incidences of actual or attempted self-harm43



Save the Children staff, who are responsible for the welfare of asylum seekers in the Nauru RPC, were engaged during the course of their professional duties in providing support to asylum seekers, including those who had engaged in acts of self-harm



Between 26 and 30 September, a series of media reports referred to allegations of sexual assault, the trading of sexual favours for marijuana, and acts of self-harm that had occurred in

41

Ibid, page 50, paragraph 3.182 See http://www.abc.net.au/news/2014-09-25/scott-morrison27s-message-to-transferees-on-nauru-and-manus-of/5769808 43 The Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, Final Report, notes between October 2013 and October 2014, 17 minors engaged in acts of self-harm and that “Ten of the 17 self-harm incidents occurred during the 25-27 September 2014 period, immediately following the Ministerial announcement of 25 September 2014.”, page 36, paragraph 3.93 42

Page 21 of 37

the Nauru RPC. These reports mirrored concerns raised in correspondence from Senator Sarah Hanson-Young to the former Minister44 

The former Minister and Department became increasingly concerned about the potential consequences of the protest activity and the former Minister was promised a list of names of workers who had been involved in ‘orchestrating or participating’ protest activity by the Department45



On or around 28 or 29 September, the Department approached Mr Lee Mitchell, a senior intelligence analyst employed by Wilson Security, requesting him to compile a report on Save the Children staff, noting “we’re interested in anything you've got on Save the Children”46



On 30 September, an investigation report was prepared by the Wilson Security Intelligence Unit based on information and reports between July 2014 and 30 September 2014, and the investigation report was provided to the Department (Wilson’s Report47)



On 2 October, the Department issued Save the Children a notice pursuant to the services contract to remove ten employees from the provision of services in the Nauru RPC. At the time of the issue of the notice only nine of the persons named on the notice were Save the Children employees, the tenth having resigned at a prior date



On 3 October, an article appeared in the Daily Telegraph under the headline of “Truth overboard: Claims of asylum seeker abuse on Nauru were ‘fabricated’”, the contents of which indicated that parts of the Wilson’s Report had apparently been selectively leaked48, and



On 3 October 2014, the former Minister appointed Mr Philip Moss to conduct the Moss Review49.

In terms of the appropriateness of the Australian Government’s response to these matters, Save the Children notes that Mr Moss found no evidence that Save the Children staff on Nauru encouraged selfharm, fabricated abuse allegations or orchestrated protests. We note further that Mr Moss recommended that the Department review its decision to issue the notice to remove staff from service provision on Nauru50. Save the Children looks forward to the Department’s review.

44

Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, Final Report, page 14, pp 1.2-1.4 45 The (then) Acting Secretary if the Department, Mark Cormack “ said to the Minister, ‘Minister what I’m going to do is I’m going to get a list of the names of the people who were identified as orchestrating or participating in this kind of behavior. I will get a list put to me, and I will exercise a right under our contract to have those people removed’, New Matilda: Inside The Department: The Explosive Leaked Transcripts From The Moss Review, Max Chalmers and Chris Graham, 13 March 2015 https://newmatilda.com/2015/03/13/inside-department-explosiveleaked-transcripts-moss-review 46 Moss inquiry: Leaked testimonies cast doubt on claims Save the Children staff encouraged asylum seekers on Nauru to self-harm. Lateline, 10 March 2015 47 Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, Final Report, page 54, paragraph 4.14 48 Truth overboard: Claims of asylum seeker abuse on Nauru were ‘fabricated’, The Daily Telegraph, Simon Benson and Jennifer Rajca, 3 October 2014 49 The Hon Scott Morrison MP, Media Release ‘Independent inquiry into 'Nauru Allegations', 3 October 2014 50 Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, Recommendation 9, page 72

Page 22 of 37

e.

Factors relating to the timing of the release of the Moss Review;

Factors relating to the timing and release of the Moss Review were entirely a matter for the Department of Immigration and Border Protection and the Australian Government.

f.

The response of the Commonwealth Government to the recommendations of the Moss Review, including timelines for implementation

As noted above, the Department has accepted all of the Moss Review’s 19 recommendations. Save the Children’s experience, since the release of the Moss Review on 20 March 2015, is that the report recommendations are being taken seriously at the highest levels of the Department. To progress the recommendations, the Department has commenced information gathering and consultations both in Australia and on island. Save the Children supports the full implementation of the recommendations and is cooperating with all stakeholders in this regard. While fully supportive of the Moss Review’s recommendations, Save the Children notes that, in some instances, the recommendations could have gone further. For example, child protection frameworks on Nauru would greatly benefit from further investment by the Australian Government to improve the capabilities of the Nauru Police Force (NPF). Report recommendations reference the need for an enhanced forensic capability in Nauru and for the possible appointment to the NPF, on a limited term basis, of an Australian Federal Police officer with executive authority. In addition to this, Save the Children is of the view that the NPF would also benefit from professional training, mentoring and additional personnel to improve its child abuse investigative capabilities. Save the Children acknowledges that initiatives such as these would ordinarily fall within the responsibility of the Government of Nauru but, given that these capability issues arise largely as a consequence of Australia’s policy of offshore mandatory detention of asylum seekers, it is appropriate that the Australian Government respond. While work to implement the report recommendations has commenced, Save the Children is yet to receive advice on timelines for implementation. Save the Children is of the view that there would be significant value in developing a holistic implementation plan, with indicative timeframes, which could be shared with all relevant stakeholders. This would provide some welcome clarity around the implementation approach and enhance coordination between stakeholders. Wherever practicable, Save the Children would strongly urge that prioritisation be given to any recommendations relating to the safety and wellbeing of children and their families.

Page 23 of 37

g.

Any related matters

Save the Children considers that the Committee’s analysis of the “responsibilities of the Commonwealth Government in connection with the management and operation of the Regional Processing Centre in Nauru” should include consideration of improvements that could be made to current operational arrangements on Nauru that could markedly improve asylum seeker wellbeing. While the Department, Government of Nauru and all service providers have made significant progress in creating a living environment that is as safe and comfortable as the circumstances allow, we consider that relatively simple improvements could be made to policy or infrastructure that would significantly benefit the liveability and amenity of the Nauru RPC, and the overall wellbeing of asylum seekers who reside there. Below we have outlined a number of such improvements. i. The treatment of, and standard of amenity available for, vulnerable asylum seekers including pregnant women and families with infants or young children Two particular cohorts of beneficiaries are of concern given the current conditions on Nauru: pregnant women and families with infants. The examples provided below illustrate the conditions for pregnant women and families with infants or young children, and include concrete recommendations to improve the wellbeing of this group. Example 5: Pregnant women Many pregnant asylum seekers have incontinence issues. Walking long distances to the toilets is therefore proving particularly challenging for these women. In response, some asylum seekers have created a ‘make-shift’ toilet and decreased their water intake to reduce the need for a toilet, despite the importance of hydration given the high temperatures on Nauru. Pregnant women are also struggling with the high temperatures, relying on frozen bottles of water provided daily by Save the Children staff to help mitigate against the heat, waiting to eat so as to be able to secure a table in the mess hall closer to the air conditioning vents and sourcing fans from those who have left their accommodation due to medical transfers or refugee status determinations. No maternity clothing is available for these beneficiaries and they are often forced to wear their husbands’ clothes or trade clothing with other asylum seekers. In some cases, pregnant women have informed Save the Children that they have not received their medication as there was no vehicle available to travel to their medical appointments and the distance, as well as terrain, made it too difficult to walk. Further, many pregnant beneficiaries have experienced food intolerance and nausea, with some unable to eat any of the food provided. Save the Children’s community health nurses have recommended that these women have access to small portions of food throughout the day to combat sickness, as well as satisfy higher metabolic rates experienced by pregnant women, but there is no access to food for women between mess hall hours, apart from one daily pregnancy food pack.

Page 24 of 37

Save the Children recommends that specific arrangements are put in place for pregnant women, including: 

Dedicated transport



Increased amenities (toilets and showers) located close to accommodation areas



The provision of appropriate maternity clothing, and



Tailored access to food appropriate for the dietary and nutrition needs of pregnancy.

Save the Children has similar concerns in relation to infants. The detention environment is not one in which any parent would chose to raise a child. Infants and young children are forced to live in cramped accommodation which can give rise to an increased risk of infection, and mean that children bear witness to acts of violence or unrest. In addition, the stress of such an environment can place strain on parents which leads to increased risk for children.

The following examples illustrate the impact of the Nauru immigration detention environment on infants and young children.

Example 6: Shane, 2 and a half years old, detained on Nauru for 11 months Shane, a 2 and a half year old boy, has been detained on Nauru for 11 months. Shane has witnessed ongoing fighting in his communal tent since his family arrived on Nauru close to one year ago. In one incident observed by Save the Children, Shane witnessed an argument and physical fight between two other families in the tent. Shane watched the fight, opened his mouth, cover it with his hands and gasp, before looking at the Save the Children worker. There has been an ongoing level of conflict within this tent, involving yelling and fighting, to which Shane has been exposed. Save the Children welfare team has expressed concerns for Shane’s development and mental wellbeing as a result of his early and regular exposure to this type of high-stress environment. Outside of the tent, Shane appears as an anxious boy who often clings to his mother.

Example 7: Margaret, 18 months old, detained on Nauru for over 12 months before being medically evacuated with her family Margaret has spent her entire life in detention. Born on mainland Australia and detained onshore, Margaret was then transferred to Christmas Island before then being transferred to Nauru. Around the time of Margaret’s first birthday, her father Andrew made threats to kill Margaret. He later explained that the frustration he has in his mind is what made him say he would harm his daughter. Both of Margaret’s parents have expressed concerns for Margaret’s health, and as a result have excluded her from play group, due to a belief that her cough could develop into a more serious infection from her interaction with other children. Her parents have expressed their fear that in the 18 months of Page 25 of 37

her life, Margaret has had many courses of antibiotics for illnesses and that despite this treatment; she remains at risk for further illness or infection due to close proximity and interactions with other children who are ill.

Save the Children does not consider that the Nauru RPC is an appropriate place for infants, and we recommend that no further transfer of infants to Nauru occur. Failing that, we recommend that no infants are transferred until a full risk assessment is carried out that takes into account the health, nutrition, developmental, psychosocial and safety needs of infants, and all recommendations of the assessment are fully implemented.

i.

General improvement in amenities for asylum seekers, for example airconditioning in tents

Nauru has a tropical climate with an average daily maximum temperature in excess of 30 degrees Celsius51. RPC 3 – the camp that houses children and families – is located in a geographic depression that receives minimal breeze and has limited shade. Much of the central area of Nauru, known as ‘Topside’, is a former or current phosphate mine. It is a hot, dusty and difficult place to live. The accommodation in RPC3 consists of temporary, vinyl tents that house up to 26 people. ‘Rooms’ are separated by tarpaulins, and there is no air-conditioning. During the daytime, temperatures inside the tents can reach up to 35 degrees Celsius, and when combined with high humidity, this makes it very challenging for asylum seekers to rest, let alone participate in recreational activities. Save the Children teachers regularly see children present at school who have been unable to sleep due to the heat in their accommodation in RPC3. The Department spends $582.4 million on the Nauru RPCs52. In addition, the number of asylum seekers in detention on Nauru has declined over recent months as RSDs are handed down and refugees are resettled in the Nauruan community. Some tents in RPC3 have air-conditioning installed, for example the early childhood care and education facility and some tents housing pregnant women and infants. Save the Children believes that there is a capacity and ability to install air-conditioning in all tents housing asylum seekers. It is a matter of priorities. Administrative facilities and accommodation for service provider staff are air-conditioned. Air-conditioning would result in a marked improvement in the living conditions for asylum seekers. It would reduce family tensions, improve students’ ability to learn and enable a range of recreation

51 52

http://www.weatherzone.com.au/climate/station.jsp?lt=site&lc=200245 Commonwealth of Australia, Senate Estimates, Legal and Constitutional Affairs Legislation Committee, Canberra, 20 October 2014, page 46. Page 26 of 37

activities to be conducted safely. We recommend that the Department prioritise installation of air-conditioning in all asylum seeker accommodation and facilities as a priority. Other minor infrastructure enhancements would also have significant positive outcomes for asylum seekers at RPC3. For example, the absence of doors contributes to a general lack of privacy and has created difficulties in controlling spaces to ensure the delivery of recreation activities which are age appropriate. Another example is the RPC3 recreation tent. The absence of appropriate play areas in the RPC3 compound makes this facility a very important recreation space for children. However, the inability to secure this facility has resulted in it being utilised as a makeshift toilet. Gaps or uneven floor panels, and ledges and exposed beams, also make this environment hazardous for asylum seeker children who have few play venue options.

ii.

the ability to properly integrate asylum seeker or refugee children into the Nauruan educational system

Save the Children believes that all children have the same rights to quality education. In the case of Nauru, this includes asylum seeker as well as local and refugee children. To ensure success in these efforts, it is important to recognise the additional pressure on the existing education system that an increase in asylum seeker and refugee students will bring. The need for concrete steps to mitigate this pressure is particularly urgent given the vulnerable nature of these students – many asylum seeker children have experienced significant trauma or distress even prior to being held in detention, which as previously noted, causes additional harm to children’s mental and emotional wellbeing, often also affecting their development and education. The Victorian Foundation for Survivors of Torture Inc. notes that the developmental impact of forced displacement on children themselves depends on three factors; the nature and extent of a child’s exposure to traumatising events, the degree to which their family has remained intact and the quality of the post-trauma environment and recovery opportunities53. Developmental impacts may be evident in children’s anxiety and fear of new environments; difficulties with concentration and memory; interrupted sleep patterns; sensitivity to failure; risk-averse behaviour; reduced capacity to form close, trusting relationships with others, especially adults; heightened irritability; increased aggression; withdrawal and isolation; regression, clinginess and avoidance of trauma-related stimuli.54

53

54

Ibid. Pg.6

Victorian Foundation for Survivors of Torture Inc., The Rainbow Program for Children in Refugee Families, 2002, Pg.6; Berson, I., & Baggerly, J., “Building Resilience to Trauma. Childhood Education”, suppl. International Focus, Vol. 85, No.6, 2009, Pgs. 375379; Sims M, Hayden J, Palmer G, & Hutchins T 2000, ‘Working in early childhood settings with children who have experienced refugee or war-related trauma,’ Australian Journal of Early Childhood, Vol. 25, No. 4, December 2000, Pgs. 41-46 Page 27 of 37

The impact of forced displacement on children’s development is compounded by the immigration detention environment, where post-displacement stresses and anxiety can be exacerbated when they do not have the language to describe their feelings or experiences55. These issues are all relevant to the current refugee and asylum seeker situation in Nauru and will be important to address in any future transition into the Nauruan education system. Education is one of the first places of day to day interaction for asylum seeker and refugee children and their families within their new community56. The ability of educators to recognise, normalise and minimise the detrimental impact of the displacement experience is critical, as ‘understanding the physical, social, emotional, behavioural and cognitive impact of trauma on children will help early childhood teachers recognise indicators for needed interventions and moments of compassion’57. It is also important for educators to be able to distinguish displacement-related issues from post-settlement issues. Children face a similar range of adjustments as their parents and family members; learning a new language, understanding a new culture, adapting to a different education system and navigating new teaching and assessment practices and educators need the skills and flexibility to respond accordingly58. The asylum seeker children currently being educated at RPC1 have already experienced, and continue to experience, these adjustments. To mitigate displacement trauma, as experienced by asylum seeker children in Nauru, Save the Children recommends ongoing and intensive professional development for all Nauruan teachers on teaching students with trauma backgrounds, with a view to building skills of recognising and managing postsettlement behaviour in a positive and constructive way. It is critical for educators to develop the skills, empathy and insight necessary to provide consistent messages of worth and safety, help children to understand how they have successfully managed frightening situations in the past and support children to identify alternative, positive solutions to the trauma scenario59. In addition to this capacity building, Save the Children recommends ongoing professional development on differentiating curriculum to allow genuine access for all students, including those with special needs. The following example illustrates the types of support required for children with special needs in a school setting.

55 56

57

Ibid. Pgs. 375-379 Dachyshyn, D., “Children Dwelling in the Absence of Home”, Indo-Pacific Journal of Phenomenology, Vol. 12, 2012, Pgs. 1-10

Berson, I., & Baggerly, J., “Building Resilience to Trauma. Childhood Education”, Pgs. 375-379 Barowsky, E., & McIntyre, T., “Migration and Relocation Trauma of Young Refugees and Asylum Seekers”, Pgs. 161-168 59 Ibid. 58

Page 28 of 37

Example 8: Toby, 8 years old, detained for over 430 days. Toby is an 8 year old boy who has been in detention on Nauru in excess of 430 days. He has attended school at RPC1 since his arrival, and is currently part of the Middle Primary Class. Toby has unusual and, at times, socially inappropriate body language and facial expressions; he will often try to avoid eye contact unless he is in a one on one situation where he feels confident. He struggles with positive social interactions and can range from seeking to be alone to the extreme of being an antagonist and physically aggressive to other children, he cannot seem to find equilibrium of successful play for very long therefore does not sustain friendships. Toby is auditory sensitive, he does not like noise and he will often seek out areas that are quieter. He also prefers to find confined spaces to rest, such as under beanbags. He likes to put objects in his mouth and chew. He can be clumsy and has on occasions banged himself against a wall (not in frustration but more a sensory seeking behaviour). Toby also finds it difficult to sequence a task to complete it. His speech and language can be contextually inappropriate both in tone and content, such as speaking in monotone or using language which is not in context to the conversation, for example expressing sadness when he is being praised. Within the confines of the RPC1 school, Toby has benefited from strong structure and routines. His environment is controlled and many support measures have been put in place in order for him to be successful. These have included but are not limited to additional individual support, small class sizes, positive reinforcement, individual learning program, fostering strong collaboration between parents, welfare workers and school with the need to meet regularly to discuss new strategies, behaviour scripts and allocating him a teacher who has a post graduate degree in Special Needs and 15 years’ experience. To be able to successfully transition to a community school, all of the above will need to continue.

Recognising that English is not the native language of the asylum seeker children who will be transitioning to the Nauruan education system, and that these children come from a diverse cultural backgrounds, Save the Children recommends professional development of Nauruan teachers in English as a Second Language (ESL) education and in cross-cultural understanding. This could be further supported by provision of a suitable supervised prayer space in relevant Nauruan schools, as well as information on students’ dietary requirements. In advance of the transition, classes currently being run at the RPC could go on an excursion to visit their new school to meet their new teachers, and Nauruan students could continue to visit RPC1 for social activities with students attending the RPC school for social and recreational activities such as soccer matches. Further, teachers at the RPC could provide a teacher-to-teacher handover to allow professionals to share information about student background, behaviour strategies, educational and welfare needs.

Page 29 of 37

iii.

the introduction of mandated time limits on the period spent in detention by children, in order to minimise its harmful impact

Various bodies have put forward different recommendations for a cap on time spent in detention. The Royal Australian & New Zealand College of Psychiatrists have recommended that children in immigration detention be processed in 72 hours to reduce the risk of mental distress60. A 2012 Parliamentary Inquiry recommended asylum seekers not be detained longer than 90 days61. Save the Children notes that a cap on the time children can spend in detention would be consistent with international law, where, under Article 37 (b) of the CRC, State Parties have an obligation to ensure that: “No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time” Introducing a cap on the time spent on detention would also be consistent with practice in other countries who have received large numbers of asylum seekers. In the UK for example, the maximum length of detention for children is now 72 hours. Any extension beyond this is only possible with ministerial approval, and even then is capped at a maximum of seven days62. Save the Children considers that the approach in the UK is preferable to policy settings in Australia, where a child can be detained indefinitely and some children have been detained for over 500 days. The evidence outline in section 5, above, demonstrates clearly that this is causing harm to children. As such and in line with the CRC, Save the Children considers that children should not be detained for longer than strictly necessary to implement health, identity and security assessments.

The AHRC has recommended a review process for children who are detained, whereby detention is effectively monitored and assessed as to whether it is justified. The AHRC has recommended that such a review “should occur within 72 hours of being detained and be conducted by an independent body63,” and that is should be “guided by four human rights principles: 

detention of children must be a measure of last resort and for the shortest appropriate period of time;



the best interests of the child must be a primary consideration;



the preservation of family unity; and

60

Royal Australian & New Zealand College, Position Statement 52, “Children in Immigration Detention”, February 2015, page 3. Accessible at https://www.ranzcp.org/Files/Resources/College_Statements/Position_Statements/52_PS-FCAP-2015-Children-in-Immigration-Detention.aspx 61 ABC Online, 30 March 2012, available at: http://www.abc.net.au/news/2012-03-30/inquiry-recommends-time-limit-on-asylumdetention/3923532 62 Refugee Council of Australia, “Australia’s detention of children: alternatives already exist,” 28 November 2014. Available at http://www.ajustaustralia.com/BriefChildDetention.pdf 63 2014 AHRC Report, page 3 Page 30 of 37



special protection and assistance for unaccompanied children.64”

The AHRC has further recommended that where children remain in detention after this review, “the law should be amended to provide for prompt and periodic review by a court65.” Save the Children is in agreement with both recommendations. However, recognising that a 72 hour or even seven day cap would represent a significant departure from existing policy, Save the Children recommends the immediate introduction of a 90 day cap, with a commitment to work towards a 72 hour cap, ultimately to be reflected through legislation. iv.

the introduction of genuine independent monitoring and reporting mechanisms to ensure that the management of the centre is transparent and subject to appropriate public scrutiny

Save the Children believes that the lack of transparency surrounding our immigration system is a key problem. Australia should not close its eyes to acts done it its name, so it is vital that our immigration system is transparent and accountable to the Australian people. Systematic monitoring and reporting can reduce the risk of abuse and ill-treatment. It can prevent escalating tensions in detention sites, riots, abuse, violence and exploitation. Monitoring can anticipate, identify and, if appropriate reporting and accountability is in place, can help mitigate threats to children’s safety, health, development and well-being. Independent and systematic monitoring of immigration detention sites must ensure that the protection and assistance needs of those most vulnerable are adequately provided. Regular and in-depth monitoring – accompanied by robust and transparent reporting mechanisms – are part of a preventative approach to human rights violations, necessary for ensuring that people, particularly children, in places of detention are protected according to international minimum standards. While Save the Children acknowledges the current work of independent monitors66, there is a lack of visibility, transparency and accountability in the current system and as such, allows the potential for inadequate response to any concerns raised through monitoring and reporting frameworks. Under current arrangements, there is no comprehensive, interagency framework for systematic monitoring and public reporting of detention sites. Further, the monitoring that does take place is largely through

64

Ibid Ibid 66 For example, while the Red Cross conducts periodic monitoring visits on Nauru, the reports from these sessions are confidential. Further information on the Red Cross monitoring program, including its offshore components, can be found at http://www.redcross.org.au/immigration-detention-monitoring.aspx. UNHCR has also conducted several monitoring missions on Nauru, and while these findings have been made public, the monitoring report itself has acknowledged that such mechanisms are “no substitute for an independent national oversight body in Nauru that has the statutory power to monitor and oversee compliance with Nauru’s international obligations.” See UNHCR, Monitoring visit to the Republic of Nauru 7 to 9 October 2013, available at http://unhcr.org.au/unhcr/images/201311-26%20Report%20of%20UNHCR%20Visit%20to%20Nauru%20of%207-9%20October%202013.pdf 65

Page 31 of 37

ad hoc visits,67 with no oversight mechanism based permanently within the detention environment that would allow for regular and systematic monitoring and reporting of rights violations. Save the Children recommends the establishment of an independent monitor to be based at the detention site, with a mandate to engage in a constructive dialogue with governments, as well as to report publically and periodically to guarantee transparency and accountability in relation to the safety and wellbeing of children and adults detained. The independent monitor should be legislatively established, have an established and maintained presence onsite and have a clear and comprehensive monitoring methodology68. This independent monitor should be multidisciplinary with relevant expertise in child rights and human rights69, and refugee law. It should monitor access to core services for the children and adults in detention sites, basic living conditions, their mental and physical health, and assist in mitigating abuse, violence and exploitation. The monitoring body must be provided with adequate human and financial resources and the power to make both law and policy recommendations.

67

United Nations High Commissioner for Refugees: Regional Office – Australia, New Zealand, Papua New Guinea and the Pacific, Men, women and children suffering from harsh physical conditions and legal shortcomings at Pacific Island asylum centres: UNHCR reports (26 November 2013), available at: http://www.unhcr.org.au/unhcr/index.php?option=com_content&view=article&id=351 68 For example see, Association for the Prevention of Torture, United Nations High Commissioner for Refugees, & International Detention Coalition, Monitoring Immigration Detention: Practical Manual, (2014). At http://www.apt.ch/content/files_res/monitoring_immigration_detention.pdf (viewed 10 September 2014). 69 Relevant expertise should include law, social work and child protection. Page 32 of 37

7.

A new approach: adopting a regional protection framework

While Save the Children notes the timely action of the Department in implementing the recommendations from the Moss Review, we maintain that Nauru remains an unsustainable solution for asylum seeker children and their families, in large part due to the long-term and in-depth damage to children’s wellbeing as a result of prolonged detention.

As such, Save the Children holds that in the longer term, it is vital that Australia moves to a more sustainable regional solution, focussed on building capacity in transit countries for timely refugee status determination, investment in programs for asylum seekers and refugees in the region to allow for access to basic services, and a genuine cooperation across the region to share resettlement of UNHCR identified refugees.

With over 50 million people displaced worldwide, the need has rarely been higher for international cooperation to address the real and urgent needs of a growing number of asylum seekers as well as the resettlement needs of identified refugees. Australia cannot tackle the world’s displacement crisis on its own, but should take steps to genuinely engage neighbouring countries in establishing a regional protection framework to facilitate an exchange of knowledge, expertise and resources with other countries in the region towards a shared responsibility to care for and protect the vulnerable children and families seeking asylum within our region.

Failure to establish such a framework risks falling back on existing policy, which as evidenced by the Moss Review and the Forgotten Children report, as well as observed through Save the Children’s direct experience on Nauru, is causing severe damage to the wellbeing of asylum seekers in detention. As stated in Save the Children’s submission to the AHRC Inquiry into Children in Immigration Detention, the current mandatory and protracted nature of Australia’s immigration detention system fails the test of fairness and sustainability, is in breach of the human rights of children, young people and adults; and fails to comprehensively and effectively address significant migration flows confronting the whole AsiaPacific region.

Further, Save the Children submits that a regional framework makes better financial sense that the current, high cost policies. Under current immigration policy, the Australian Government spends in excess of AUD$3.3 billion on the detention of a few thousand asylum seekers, including in offshore processing centres in Nauru and PNG. In contrast, UNHCR spends an estimated AUD$5.8 billion annually, working worldwide to provide support to 51.2 million refugees, asylum seekers and other people of

Page 33 of 37

concern such as internally displaced persons or those made stateless through displacement70. By this measure, Australia’s policies thus represent a cost of an estimated 57% of UNHCR’s global budget, for a fraction of the number of people. With direct experience in providing basic services for child asylum seekers and refugees worldwide, Save the Children holds that these funds would bring much greater value for money if used in an investment in capacity building and service provision in the region, including in countries of first asylum and other transit countries such as Indonesia, Malaysia, Thailand, Pakistan, Lebanon, Jordan and Iraq. With less reliance on the immigration detention system, particularly the offshore component, the Australian Government could for example redirect the resultant savings to assist UNHCR expansion and support local integration programs and the promotion of human rights in the countries above. In addition some off these savings could be put towards costs associated with an increased humanitarian intake.

Australia’s continuing engagement and participation in a regional protection framework has been supported by a number of commentators as the missing piece of the asylum seeker policy response71. Refocussing our policy approach to ensure safer and regular humanitarian pathways for asylum seekers and refugees in the region would create a more balanced and fairer system, providing concrete incentives to follow regular migration pathways over irregular maritime travel.72 This would maintain the sovereignty of Australia’s borders, whilst benefiting refugee children, young people and families by promoting better safeguards and protection measures in the region. It would also reduce Australia’s reliance on the immigration detention system. The dual aim of such a policy would be to ensure safer and regular humanitarian pathways for refugees, ultimately removing the need for deterrence measures such as immigration detention or boat turn-backs.

For these reasons, Save the Children is in favour of the Australian Government taking steps to genuinely engage neighbouring countries in a regional solution, which focuses on cooperation and protection. There is substantial commentary and reporting about the composition of a potential regional solution, and there is much consistency across various proposals73. Save the Children considers that some of the key elements of Australia’s contribution to a regional solution would include:

70

Bob Douglas, Claire Higgins, Arja Keski-Nummi, Jane McAdam and Travers McLeod. Beyond the Boats: Building an Asylum and Refugee Policy for the Long Term, Australia21 in collaboration with the Centre for Policy Development and the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW, November 2014, page 7. 71 For example: Andrew & Renata Kaldor Centre for International Refugee Law, Factsheet: Regional Cooperation (29 October 2013); Penelope Mathew and Tristan Harley, Refugee Protection and Regional Cooperation in Southeast Asia: A Fieldwork Report, the Australian National University (March 2014); Nicholas Reece, How to Make our asylum-seeker policy firm but fairer, the Age (24 March 2014); Robert Manne, On refugees, both the left and the right are wrong. The solution: compromise, The Guardian (12 March 2014); and Peter Browne, The asylum-seeker plan that keeps disappearing over the horizon, Inside Story (9 April 2014). 72 Nicholas Reece, How to Make our asylum-seeker policy firm but fairer, the Age (24 March 2014). 73 For example: Andrew & Renata Kaldor Centre for International Refugee Law, Factsheet: Regional Cooperation (29 October 2013); John Menadue, Arja Keski-Nummi and Kate Gauthier, A New Approach: Breaking the stalemate on refugees and asylum seekers (August 2011); Australia 21, Refugees and Asylum Seekers: Finding a Better Way (2013); Refugee Council of Australia, A Regional Refugee Protection Framework (2010); Report of the Expert Panel on Asylum Seekers (August 2012); Penelope Mathew and Tristan Harley, Refugee Protection and Regional Cooperation in Southeast Asia: A Fieldwork Report, the Australian National University (March 2014); Nicholas Reece, How to Make our Page 34 of 37

1.

Australia’s humanitarian settlement program should be permanently increased to 20,000 places with a phased increase to 30,000 places over five years74. Many commentators suggest that a substantial increase in Australia’s humanitarian settlement program is essential to improving our current asylum seeker policy approach75. This change is a necessary first step towards better regional cooperation; it is a symbol of goodwill and would indicate Australia’s commitment to sharing the burden posed by the complex migration challenges confronting the region.

Alongside an expansion of Australia’s humanitarian settlement program, a

significant number of resettlement places should be allocated for applicants from countries of first asylum that are sources of asylum seeker flows to Australia as well as key transit countries in the region, such as Indonesia and Malaysia.

Immediately increasing the humanitarian program to 20,000 places simply restores Australia’s program to the numbers of places offered in the early 1980s. For example, in 1979-80, Australia’s refugee and humanitarian program granted 19,954 visa places and in 1980-81, approximately 22,545 visa places were offered76. Taking into account population growth over the past 30 years77, those 22,545 places equate to approximately 35,000 places in 2014. A gradual increase in the humanitarian settlement program, to 30,000 places over the next five years, is therefore a reasonably conservative increase and well in line with Australia’s population growth and social and economic capacities.

2.

Australia should work with neighbouring countries to develop a coordinated and consistent approach to ensuring timely resettlement of those who are found to be refugees. Providing genuine and durable solutions for those seeking protection will be key to an effective regional protection framework. This is likely to require additional support and targeted development funding for countries in the region in order to strengthen capacity to resettle refugees (see element 4 below for further details)

78

. It is also important to ensure options for

complementary protection where people face human rights violations on return, as well as asylum-seeker policy firm but fairer, the Age (24 March 2014); and Peter Browne, The asylum-seeker plan that keeps disappearing over the horizon, Inside Story (9 April 2014). 74 While the Report of the Expert Panel on Asylum Seekers recommended that ‘the Humanitarian Program be immediately increased to 20,000 places per annum [and]… to around 27,000 [places] within five years’, Save the Children concurs with the proposal of Peter Browne, of Swinburne University, that a rise in the humanitarian program to 20,000 places ‘would simply restore Australia’s program to its numbers in 1980-81… Taking account of population growth, those 20,000 places would translate to 30,000 in 2013-14’. For further information see: The Report of the Expert Panel on Asylum Seekers (August 2012), pg. 14; and Peter Browne, The asylum-seeker plan that keeps disappearing over the horizon, Inside Story (9 April 2014). 75 For example: Australia 21, Refugees and Asylum Seekers: Finding a Better Way (2013); Report of the Expert Panel on Asylum Seekers (August 2012); Nicholas Reece, How to Make our asylum-seeker policy firm but fairer, the Age (24 March 2014); Peter Browne, The asylum-seeker plan that keeps disappearing over the horizon, Inside Story (9 April 2014); Sandy Gifford, Resettling refugees: the evidence supports increasing our intake, The Conversation (27 July 2012). 76 Refugee Council of Australia, National and Global Statistics. 77 In 2012, Australia’s population was approximately 22.7 million. In 1980, Australia’s population was approximately 14.7 million. Australia’s population increased by approximately 55 per cent over the three decades between 1980 – 2012. 78 Andrew & Renata Kaldor Centre for International Refugee Law, Factsheet: Regional Cooperation (29 October 2013). Page 35 of 37

safe repatriation of those who are found not to be refugees and are ineligible for complementary protection79.

3.

Build the capacity of countries in the region to conduct timely, effective and fair refugee status determinations and/or support UNHCR to provide such services. The Expert Panel highlighted how regular humanitarian pathways are “failing to provide confidence and hope80.” There is a need to improve and expand these regular pathways, which requires support for the UNHCR and processing in the region. Additional funding for the expansion of UNHCR or local Refugee Status Determination offices in Thailand, Malaysia and Indonesia is required, with the focus on ensuring timely, effective and fair processing81. The ultimate aim should be a regional UNHCR refugee determination process that is fair and common, and that complies with international standards82. In addition, support and capacity building in the region should also work towards ensuring that certain safeguards are in place, including: humane reception, legal recognition and adequate living conditions for asylum seekers awaiting determination of refugee claims; real access to the UNHCR / refugee status determination process; the right to appeal; procedural fairness; the right to remain in country while determinations and appeals take place83.

4. Funding and investment in local integration programs and better services for asylum seekers and refugees. To support and strengthen regular humanitarian pathways, steps should be taken throughout the region to improve living conditions, access to essential services (such as education and healthcare), employment options and livelihood support for both asylum seekers during the processing of their refugee claims and for refugees who have been resettled or who are awaiting resettlement. As a wealthy, developed nation Australia has an important role to play in building the capacity of countries in the region to resettle refugees. This will require additional funding for development programs and more support for NGOs, in particular local NGOs, that provide vital services to asylum seekers and refugees.

5.

Promote human rights, improve protections and remove the barriers that prevent asylum seekers from accessing refugee determination processes. Across the region there should be

79

Ibid. Report of the Expert Panel on Asylum Seekers (August 2012), pg 28. 81 Andrew & Renata Kaldor Centre for International Refugee Law, Factsheet: Regional Cooperation (29 October 2013). 82 Ann McNevin, ‘Why we would gain from a regional approach to refugee protection’, Inside Story (31 July 2013); and Andrew & Renata Kaldor Centre for International Refugee Law, Factsheet: Regional Cooperation (29 October 2013). 83 Andrew & Renata Kaldor Centre for International Refugee Law, Factsheet: Regional Cooperation (29 October 2013); John Menadue, Arja Keski-Nummi and Kate Gauthier, A New Approach: Breaking the stalemate on refugees and asylum seekers (August 2011) and Peter Browne, The asylum-seeker plan that keeps disappearing over the horizon, Inside Story (9 April 2014). 80

Page 36 of 37

consistent recognition of asylum seekers and refugees84, with complementary legal protections to enable them to work and live. For example, ratification of the Refugee Convention and international human rights treaties, and development of national laws that: facilitate registration of asylum seekers and refugees; guard against harassment and discrimination; and promote consistent refugee determination processes that adhere to international standards. In addition, asylum seekers and refugees should be provided with practical and unhindered access to basic government services and other relevant supports (as detailed above).

Continuous and increasing migration flows is a significant and complex challenge for the region and requires a unified and integrated regional response. Working solely within a national policy setting will not resolve this challenge. Instead, Australia must work with neighbouring countries on a true regional solution; one that includes a clear overarching agreement to work towards consistent and fair processing of asylum seekers, expanded and improved resettlement options and enhanced protection of asylum seekers and refugees throughout the region. Better resourcing and burden sharing by Australia will be central components of a regional solution.

Countries in the region need to re-engage, as equal partners, in the Bali Process and other mechanisms to establish a clear and equitable regional agreement. Alongside these efforts, the Australian Government should leverage its political and economic diplomacy and focus its efforts on addressing the root causes of displacement, including by investing in economic development, basic services, enhanced governance, capacity building and better protections in source countries. In our experience, this support is essential in reducing migration flows in source countries. For example, Save the Children is currently supporting children and families in villages along the Syrian border in Jordan so that they remain safe, protected, have access to basic services and the conditions necessary to avoid displacement and disruption as a result of the conflict over the border.

84

Dr Savitri Taylor, Refugee Protection in the Asia-Pacific, FAHAMU Refugee Programme. Available at: http://www.refugeelegalaidinformation.org/refugee-protection-asia-pacific Page 37 of 37